The Blog of the Center for the Study of Constitutional Originalismat the University of San Diego School of Law

4 posts categorized "Film"

07/04/2016

The U.S. Declaration of Independence is a magnificent inspirational document. I read it to my kids every Fourth of July, whether they want to hear it or not. But I don't think it offers much help in interpreting the Constitution.

True, it is a document of the founding era, written and adopted by educated people of the same background, education and outlook as the people who wrote the Constitution (indeed many of the very same people). So the way it uses language may be relevant to the way the Constitution uses language, to the extent the language they use overlaps. But in this sense it is no different from and no more significant for constitutional interpretation than other documents of the founding era written by educated people of the same background, education and outlook as the people who wrote the Constitution. And in fact the language of the Declaration and the Constitution does not overlap very much, at least not in useful ways.

Some people would give the Declaration greater weight, as a reflection of values that inspired the Constitution, and thus of values that we should read into the Constitution even if they are not expressly there in the Constitution's text. But I am skeptical. The two documents are very different. The Declaration is fundamentally a rhetorical document, meant to persuade the world -- and more immediately and significantly, to persuade wavering Americans -- that the revolutionaries' cause was just. The Constitution is fundamentally a legal document, meant to spell out a form of government to which Americans would be bound, and by which that government would be bound. Perhaps the Constitution implemented the rhetorical ideals of the Declaration, but perhaps it didn't (and perhaps it was the worse for that). The way to see if the Constitution implemented the ideals of the Declaration is to look at the Constitution's text, not to assume that it did.

When I hear people appeal to the ideals of the Declaration in interpreting the Constitution, I suspect that they are trying to find something in the Constitution that isn't there, and so must be found by other means than reading the text. Of course, if they are using the ideals of the Declaration to reinforce what's in the Constitution's text, that's fine -- but also isn't adding all that much.

06/04/2014

Chief Justice Roberts' majority opinion in Bond v. United States has been sharply criticized (see here and here), so I'll say few words partially in its favor. The case has seemed odd from the beginning because the federal statute at issue implements the Chemical Weapons Convention and (as the majority says) the local misuse of household chemicals does not seem the type of activity that is likely to implicate an international treaty. As the majority puts it:

To begin, as a matter of natural meaning, an educated user of English would not describe Bond's crime as involving a "chemical weapon." Saying that a person "used a chemical weapon" conveys a very different idea than saying the person "used a chemical in a way that caused some harm." The natural meaning of "chemical weapon" takes account of both the particular chemicals that the defendant used and the circumstances in which she used them.

When used in the manner here, the chemicals in this case are not of the sort that an ordinary person would associate with instruments of chemical warfare. The substances that Bond used bear little resemblance to the deadly toxins that are "of particular danger to the objectives of the Convention." Why We Need a Chemical Weapons Convention and an OPCW, in Kenyon & Feakes 17 (describing the Convention's Annex on Chemicals, a nonexhaustive list of covered substances that are subject to special regulation). More to the point, the use of something as a "weapon" typically connotes "[a]n instrument of offensive or defensive combat," Webster's Third New International Dictionary 2589 (2002), or "[a]n instrument of attack or defense in combat, as a gun, missile, or sword," American Heritage Dictionary 2022 (3d ed. 1992). But no speaker in natural parlance would describe Bond's feud-driven act of spreading irritating chemicals on Haynes's door knob and mailbox as "combat." Nor do the other circumstances of Bond's offense-an act of revenge born of romantic jealousy, meant to cause discomfort, that produced nothing more than a minor thumb burn-suggest that a chemical weapon was deployed in Norristown, Pennsylvania. Potassium dichromate and 10-chloro-10H-phenoxarsine might be chemical weapons if used, say, to poison a city's water supply. But Bond's crime is worlds apart from such hypotheticals, and covering it would give the statute a reach exceeding the ordinary meaning of the words Congress wrote.

It's true, as Justice Scalia says in concurrence, that the statute defines "chemical weapon" in a way that appears to vary sharply from the phrase's ordinary meaning. But according to the majority, it is appropriate to consider "the dissonance between [the] ordinary meaning and the reach of the definition." As the majority says,

...[W]e have doubts that a treaty about chemical weapons has anything to do with Bond's conduct. The Convention, a product of years of worldwide study, analysis, and multinational negotiation, arose in response to war crimes and acts of terrorism. See Kenyon & Feakes 6. There is no reason to think the sovereign nations that ratified the Convention were interested in anything like Bond's common law assault.

That seems enough to create an ambiguity, or at least an oddity, such that the majority's invocation of a presumption against Congress upsetting the state/federal balance may be appropriate.

Where I think the majority goes astray, though, is in its focus on the statute rather than the Convention. The majority says:

Fortunately, we have no need to interpret the scope of the Convention in this case. Bond was prosecuted under section 229 [of the implementing statute], and the statute--unlike the Convention--must be read consistent with principles of federalism inherent in our constitutional structure.

That seems wrong on two counts. First, the statute's language in relevant part closely tracks the Convention's language. Surely what Congress wanted to do was to fully implement the Convention. To ask what Congress intended is to ask what the Convention intended. If the Convention reached very broadly into local matters, Congress would want to do so as well. There is no reason to think -- given the parallel language -- that Congress wanted to do less than the Treaty called for. And indeed the majority seems to see this, for despite its disclaimer, it repeatedly returns to the purpose and context of the Convention.

Second, I think it's wrong to say that the Convention, unlike the statute, need not "be read consistent with principles of federalism." The U.S. Senate gave its consent to the Convention. If Congress is presumed not to upset the state/federal balance by legislation absent a clear statement, why should this presumption not also extend to the Senate (a part of Congress) when it approves treaties? Further, treaties should be subject to a related presumption that they do not reach matters of purely local concern. As Justice Thomas says in his concurrence, a treaty is by definition an agreement on matters of international concern. That category may be somewhat hard to define (especially in the modern context in which some matters occurring entirely within a sovereign nation nonetheless attract intense international interest). But however defined, it seems plain that Bond's actions were not of international concern. I cannot imagine that any nation would show any interest in how the U.S. treated her offense.

In sum, I think the proper focus is the Convention, not the statute. The statute was designed to cover whatever the Convention covered. But the ambiguity the majority identifies in the statute is a product of a parallel ambiguity in the Convention, which also appears to define "chemical weapons" broadly and in a counterintuitive way. The Convention, if read as the government would read it, would reach matters not of international concern and would upset the state/federal balance with respect to local crime. In this context, it is plausible to say that is not what the Senate understood itself to be approving.

(For my earlier assessment of the case, somewhat along these lines, see here).

This post is a good introduction to possible readings of the privileges or immunities clause:

Currently, there are primarily three competing views of the Privileges or Immunities Clause. One group of scholars insist that that Privileges or Immunities Clause does not incorporate the Bill of Rights but instead closely tracks Article IV’s Comity Clause and provides nothing more than a degree of equal protection (the Equal Protection-only reading). A second group agrees that the Clause tracks the Comity Clause, but insists that state-secured rights once afforded equal protection under cases like Corfield v. Coryell have been transformed by the Fourteenth Amendment into substantive unenumerated rights. This second group believes that the Privileges or Immunities Clause both incorporates the Bill of Rights and protects certain “fundamental” unenumerated rights (the Fundamental Rights reading). A third (and, to date, much smaller) group follows an idea originally proposed by Justice Hugo Black, and maintains that the Privileges or Immunities Clause protects only those rights actually listed in the federal Constitution (the Enumerated Rights reading).

The Slaughterhouse Cases is one of the most despised decisions in American constitutional law. Scholars commonly describe the case as eviscerating the Privileges or Immunities Clause and closing the door on incorporating the Bill of Rights against the states. Neither assertion is true. In fact, Justice Miller’s opinion is remarkably consistent with the original understanding of the Privileges or Immunities Clause, including the incorporation of the Bill of Rights.

04/30/2014

At Opinio Juris, Ryan Scoville (Marquette Law) has a great post on Zivotofsky v. Kerry, the Jerusalem Passport case. From the introduction:

Recently the Supreme Court granted certiorari in Zivotofsky v. Kerry to resolve an important question in U.S. foreign relations law: does the power to recognize foreign states and governments belong exclusively to the President, or do the political branches hold it concurrently? More specifically, Zivotofsky concerns the constitutionality of Section 214(d) of the Foreign Relations Authorization Act of 2003, which requires that upon request from a U.S. citizen born in Jerusalem the Secretary of State must record “Israel” as the place of birth on the individual’s passport. Oral arguments are scheduled for the fall. The case has generated a lot of interesting commentary, the most impressive of which is a pair of law review articles (here and here) by Robert Reinstein, who uses textual and historical analysis to argue that the President shares the recognition power with Congress. In this post, I want to sketch out an alternative view that grants substantial recognition powers exclusively to the President while also making sense of Professor Reinstein’s historical research.

Briefly, Professor Scoville's claim (which I generally think is right) is that the President has an exclusive power of de jure recognition but Congress has a shared power of de facto recognition. As he explains:

... I want to suggest first that it’s important to be precise about what “recognition” means. International law of course differentiates between ... recognition de jure and de facto. With de jure recognition of a state, the United States expresses that a given political unit qualifies as a state under international law and thus holds the rights and obligations that accompany statehood, including the right to invoke sovereign immunity and the act of state doctrine as defenses in court. De jure recognition of a government, by contrast, is acknowledgment of a foreign government as the depository of a state’s sovereignty. This kind of recognition signals a general willingness to enter into normal diplomatic relations and facilitate the government’s exercise of the state’s sovereignty vis-à-vis the United States. Finally, de facto recognition also entails a willingness to carry on official relations, but without necessarily saying anything about the particular form those relations will take. One can de facto recognize a foreign government, for example, without exchanging ambassadors or providing its leaders with immunity from suit. ...

These distinctions offer a useful way to conceptualize the separation of powers problem in Zivotofsky. To say that Congress holds a concurrent power to recognize de jure would mean that Congress can formally establish the willingness of the United States to enter into normal diplomatic relations with a foreign government. It would also mean that Congress can decide who gets to invoke sovereign immunity and the act of state doctrine in court and otherwise exercise the prerogatives of statehood under international law. But if Article I provides only for a concurrent power to recognize de facto, then Congress can do no more than establish official relations that fall short of de jure recognition. This might include, for example, trade relations.

This all seems rights as far as it goes, and it's a very insightful refinement of the recognition arguments in Zivotofsky. And, as he goes on to say, it suggests that the President does not have an exclusive power to say whether Jerusalem is in Israel (because that is -- probably -- a de facto rather than a de jure conclusion).

Eugene Kontorovich has a related post at Volokh Conspiracy arguing even more strongly that Zivotofsky does not implicate the President's exclusive recognition power. Again, I entirely agree. The President does not, directly, have an exclusive recognition power. The President has an exclusive power to receive ambassadors. That power encompasses the de jure recognition power Professor Scoville discusses, because de jure recognition is exercised by receiving ambassadors. But it does not encompass de facto recognition (or at least not some aspects of it), because de facto recognition can be done other than by receiving ambassadors (for example, by trade relations, again as Scoville says). And, as Kontorovich says, the passport case has nothing to do with receiving ambassadors.

But, to repeat myself, I don't think this gets Professors Scoville and Kontorovich where they want to be in Zivotofsky itself. Congress needs a power to act in the first place, before we even get to the question of exclusive presidential power. I entirely agree that Congress could, for example, pass trade regulations that defined "products of Israel" to include products made in Jerusalem -- and even that said "for purposes of this statute Jerusalem shall be treated as part of Israel." But Congress' power over passports is much more tenuous.

A passport is a communication from the State Department to foreign governments. At least, that was its historical function. Thus it is an exercise of diplomacy. Congress does not have a general power over diplomacy. (Professor Scoville may disagree, because he has a great article somewhat to the contrary). But in my view, Congress has no enumerated-power-based interest in having Zivotofsky's passport say anything about the status of Jerusalem.

Professor Kontorovich suggests that the passport power arises from Congress' power over immigration and naturalization, but that also seems a stretch. I agree that Congress' naturalization power allows Congress to declare that Zivotofsky is a U.S. citizen because his parents are U.S. citizens. But the status of the territory on which he was born is, for immigration and naturalization purposes, irrelevant.

In sum, I think the more interesting issue in this case is where Congress might get a power to force a passport to reflect Jerusalem's status. That Congress can declare its view of Jerusalem's status in statutes clearly within its enumerated power seems correct.

Further note: Ryan Scoville also has his own blog on international matters, which is worth watching for constitutional foreign affairs law commentary.